Docket No. 105805.



### IN THE SUPREME COURT OF THE STA TE OF IL LINOIS

THE PEOPLE

OF THE ST

ATE OF IL

LI NOI S ex rel . LI SA MADIGAN, Petitioner, v. HONORAB LE JAME S B. KI NZER et al. , Responde nts.

Opinion filed January 23, 2009.

JUSTICE KILBR ID E de livered

the judg ment of the

court, with opinion. Chief Just i ce Fitzgerald and Justices Thomas, Garman, and Karmeier concurred in the judg ment and opinion. Justice Burke s

pecially concurred, with opinion, joined by Justice Freeman.

OPINION

Illinois Attorney Gene

ral Lisa Madiga

n filed an original mandamus action in this court under Supreme Court Rule 381 (188 Ill. 2d R. 381), seeking to vacate a sentence o f court s upervision imposed upon Kyle Kissack f

or his driving under the influence of alcohol conviction. The petitioner contends that cour

t supervi sion is prohibited

by section

5–6–1(d)(3) of the Unified Code of Corrections (Code) (730 IL CS 5/5–6–1(d)(3) (West 2006)), becaus e Kis sack previous ly

pled guilty to rec

kless driving as a result of a plea agree ment. We hold that the sentence of cou rt su pervision is not-2- authorized

by statute in these circ

umstances. Accordingly , we award the order of mandamus

.

I. BACKGROUND Ky le Kissack was char

ged wit h drivin g under the influence of alcohol (DUI) (625 I

LCS 5/11–501 ( We st 2006)). On August 24, 2007, he entered a guilty

plea t o that offense in the circuit court of Iroq uois County and the Honorable James B. Kinzer (r espond ent) sentenced him to 14 months of court supervision. The State filed a

motion to reconsider the sentence, asserting that Kissack had previously pled

guilty to rec

kless driving as part of a plea agree ment. The State contended that section 5–6–1(d)(3) of the Code (730 IL CS 5/5–6–1(d)(3) (West 2006)) prohibits a sentence of court supervisionfor DUI when the de fendant previou sly pled gu ilty to reckle ss driving under a plea agr e eme nt. The State, therefore, maintained

that Kissa

ck’s sen tence was void because it was not authorized by statute. The responde

nt denied the motion t

o reconsi der in

a written order. Respondent

acknowledged s ect ion 5–6–1(d)(3) provides that court supervisionis not authorizedif a defendant previously pled guilty to reckle ss driving as a result o f a plea agree ment. Resp ondent ini

tially found, however, that a literal application o f s ection 5–6–1(d)(3) would create an unconstitutional irrebuttab le pr esumption that a reckle ss driving

charg e was re duced fr

om a DUI . Responde

nt could find no justification for treating previous convictions of reck less driving and DUI identically for purposes of court supervision on a subsequent DUI offense

. Respondent

found tha t the leg islature

intended to treat prior gu

ilty pleas to reckl ess drivin

g and DU I ide ntically only when a DUI charge

was reduce d to reckle ss driving . Accor ding to respondent, People v. Kuhn , 126 Ill. 2d 2 02 (1988), was “controlling: there must be evidence that the plea was the result of a plea agreement involving an effort to reduce the effect of the DUI charg e (as opposed to a recognition

by t he State that the DUI charg e was simply not capa ble of being proved at trial and dismissed for that reason) .” Respondent

noted that Kissack pled guilty

to reckless drivingin 2002. A DUI

charg e was dism

issed in tha

t c ase. The reason for the-3- dismissal was unclear, however. Respondent observed that the DUI charge may have be en dismissed due to insufficient evidence. Ac co rd in gl y, responde

nt f ound that Kissack was eligible for court supervision under section 5–6–1(d)(3). The State filed a mot ion to amend t he order to comply

with Supre me Court Rule

18 (210 I

ll. 2d R. 18) , assert

ing that th e orde r did not contain the information required when a circuit court declares

a statute unconstitutional. Kissack responded that the order did not declare the statut

e uncons titutio nal . Rather, the order was based on the responde

nt’s cons truction o f section 5–6–1(d) . Foll owing a hearin g, responde nt den ied the State’s motion to amend the order. There is no record of respondent’s reasoning in denying the

motion. The petitioner then moved this court for leave to file an original manda mus comp laint. This court allowed the petitioner to file the complaint and ordered the par

ties to brief the issues. The petitioner seeks an order

directin g the re spondent t

o vacate the sentence of court supervision and impose a sentence in accordanc e with the Code. The petitioner attached to the complaint the docket sheet showing the disposition of Kissack’s pre vious charg es. The d ocket en try in

casenumber 2001–DT–160 for May 7, 2002, states in pertinent part: “Casecalled for jury

trial outside the presence of th e j ur y. Jury w aiver signed. Defend

ant plea ds guilty to Reckle ss Drivi ng, one yea

r court supervision, fine of $350 plus costs of $123.00[.] State moves to Nolle prosse DUI char ge i n 01DT160 pursuant to agreement.” The entry f

or May 9, 2002, states, “ Case nolle prossed.”

II. AN ALYS IS This court ma

y exercise o rigina

l jurisdic ti on in mandamus actions. Ill. Const. 1970 , art. VI, §4(a). Mandamus is an extraordinary remedy to enforce the performance of official nondiscretionary

duties by a public officer. 1350 Lake Shore Associates v. Healey , 223 Ill. 2d 607, 614 (2006). Mandamus will be granted only when the petitioner shows a clear right to relief, a c lear public duty to act, and clear

au thority of the official to comply w ith the order. People

ex rel

. Devinev. Sharkey , 221 I ll. 2d 613, 616-17 (2006). Mandamus relief is improper if it substitutes the court’s judgment or discretionfor that-4- of the official. Holly v. Montes , 231 Ill. 2d 153, 156 (2008). I

t is well settled, ho wever, that mandamus is a proper means to compel compliance with the mandatory sentencing provisions of

the Unified Code of Corrections. People ex rel. Birkett v. Jorgensen , 216 Ill. 2d 358, 362 (2005). Petitioner contends that

the plain language and purpose of section 5–6–1(d)(3) preclude a s entence of court supervision for Kissack’s convictionof drivi ng und er the in fluence of alcohol. Petitioner asse rts that this court should, therefore, enter a mandamus order directing the respondent to sentence Kissack in accorda nce with the Code. Respondent

did not file

a respon sive brie f. In hi s brief, Kissack argues that section5 –6–1(d)( 3) prec ludes cou rt super vision only when the offe nder pre viously entered into a plea

agreement reducing

a charge of driving under the influenc e of alc ohol to re ckless drivi ng. Inthis case , he pled g

uilty to reckl ess drivin

g and th e State

dismissed the D UI charg e. Thus, according to Kissack, section 5–6–1(d)( 3) doe s notpreclude court

supervision because a DUI charge was not

reduced to reck less d rivin g. Here, we must de

termin e whether Kissack’s sentence of cour t supervisionis authorized

under section 5–6–1(d)(3) of the Code. This case presents a question of statutory construction subje ct to de novo review. Peo

ple v. Lewis , 223 Ill. 2d 393, 402 (2006). The fundamental ob

je ct iv e o f s ta tu to ry c onstruction is to ascertain and give eff e ct to the intent of the legislature. Jorgensen , 216 Ill. 2d at 363. The best

indication of legislative intent is th e stat utory lan guage given its plain and ordinary

meaning. Holly , 231 Ill. 2d at 159. When statutory language i s plain

and unambiguous, the statute must be applied as wri tten without resort to aids of statutory construction. Pe ople v. Howard

, 228 Ill. 2d 428, 438 (2008). We may not depart froma stat ute’s plain langua ge by readin g i nto it exception s, limitations , or condit

ions the le gislatu

re did not express. Lewis , 223 Ill. 2d at 402. Courts shou ld not atte mpt to read a statute other than inthe manne

r it was w

rit ten. Rosewood Care Center, Inc. v. Caterpillar, Inc. , 226 Ill. 2d 559, 567 (2007). Section 5–

6–1(d) of the Code s tates: “The provisions of paragraph (c) [pertaining to court supervision] shall not appl y to a defe ndant cha

rged w ith-5- violating Section 11–501 of the Illinois Vehic le Co de [ DUI]

or a similar provision of a local ordinance when the defenda nt has previously bee

n: (1) convicted for a

violation of Section 11–501 of the Illi n ois Vehicle Code or a similar provision of a local ordinance or

any similar law or or

dinance of another

state;
or (2) ass i gned supervision for a violation of Section 11–501 of the Illinois Vehicle Code or a similar provision of a local or d inance or any similar law or ordinance of another state; or (3) pleade d guilty

to or stipul ated to th e facts supporting a charge or a finding of guilty to a violation

of Section 11–503 of

the I llinois Ve

hicle Code

[reckles s drivi ng] or a similar provision of a local ordinance or

any similar law or ordinance of another state, and

the plea or stipulation was the r

esult of a plea ag reemen t.” 730 I LCS 5/5–6–1(d) (West 2006). Thus , section 5–6–1(d)(3) provides that a defendant cha rged wit h DUI is not eligible for court supervision if the defendant has previous ly

pled guilty to rec

kless driving as a result of a plea agree ment. Under th e plain la nguag e of the sta tute in these circumst ances, a previous guilty plea to reckless driving under a plea agreement

is the only requirement f or barring a sentence of c o ur t supervision. Contrary to Kissack’s arg

ument, the

plain langua ge of the statute does not requi

re th e previo us plea agreement to include a re duction of the c harge from DUI

to reckless driving. The legislature did not limit or condition the phrase “plea agreement” in any

way. Kissac

k’s constructionof section 5–6–1(d)(3) requires adding a condition to the plain language of

the statute. We will not read in to th e plai n langu age of a statute exceptions, limitations, orconditions not expressed by the legislature. See Lewis , 223 Ill. 2d at 402. This court has recog nized that p lea ag

reemen ts gene rally result in

a reducti on of the origina l charg e or some

othe r conside

ration in

ex change for an agreement to plead g uilty. People v. Eckhardt , 12 7 Ill. 2d 146, 151-52 (1989). The State’s offer of co nsideration for-6- pleading gu il ty d istinguishes a ple a agre ement fr om a blind g

uilty pl ea. Ec khardt , 127 I ll. 2d at 15 1-52. Fu rther, Su preme Cou

rt Rule 402(d) indicates that the consideration for a plea ag reement may include the State’s recommen dation of a specific sentence or dismissal of other charges. 177 Ill. 2d R. 402(d). Thus, any ag reement where the State off

ers some consideration in return for a defendant’s guilty plea w

ill satisfy the plain langua ge of section 5–6–1(d)(3). Kissack argue s, nonethe less, tha t thi s court’ s decisio ns in Eckhardt and People v

. Ku hn , 126 Ill. 2 d 202 (198 8), suppo rt his interpretation of section 5–6–1(d). He contends that those cases construed section 5–6–1(d) to p roh ibit court supervision only when

a defenda nt’s pre vious conv

icti on of r eckless driving resulted from a reduction of a DUI

charge. In Ec kha rdt , the State filed a direct appeal from a circ uit court decisionfindi ng section 5–6–1(d) of the Code (Ill. Rev. Stat. 1985, ch. 38, par. 1005–6–1( d)) unconstitutiona l on e qual protection ground s. Eckhardt , 127 Ill. 2d at 148. The trial court determined that

a defenda nt pleadi ng gui lty t o reckle ss driving under

a plea agreement committed the s ame conduct as one who entered a blind g uilty plea to reckless driving. Section 5–6–1(d) of the Code treate d tho se t wo groups of defendants differently , however. The trial court, therefore, held that the st

atute vio la ted equal protection guarantees. Eckhardt , 127 Ill. 2d at 150. This court disagreed with the trial court’s finding that a blind guil t y plea to r eckless driving is the same

quality of offe nse as a guilty plea by ag

reement. Eckhardt , 127 I ll. 2d at 151. We recognized that plea agreements ge

neral ly resul t in a reduction of the original charge or some

other considera

tion in ex ch an ge fo r p le ad in g gu il ty. Eck hardt , 127 I ll. 2d at 15 1-52. A de fendant enterin g a blind guilt

y plea does not receive any

such concession. Eckhardt , 127 I ll. 2 d at 151-52. Viewing the stat

u te in this context, we held that it did not violate equal protection guarantees. Eckhardt , 127 Ill. 2d at 152. In Eckhardt , this court conclusively re solved the defendant’s equal protection c laim b y finding that the g roups at issue were not similarly situated. See People v

. Whit field , 228 Ill. 2d

502, 512 (2007) (decliningto apply

the rational basis

test bec ause the defenda

nt could notmeet the threshold requirement of showing that he and the group he used for comparison were similarly situated ). This court-7- neverth eless went on to find that section 5–6–1(d ) was r ationally related to the state’s legitimate goal of pr om ot in g h ig hw ay s af et y. Eckhardt , 127 I ll. 2d at 1 52-53. We observed that the “thrust” of section5–6–1(d) is to prevent repeat dr unk driving offenders from endangering

the lives of other

motorists. Eckhardt , 127 Ill. 2d at 152. We also stated that the “obvious focus” of section 5–6

– 1(d) is to preclude supervision not only to those prev iously convicted of driving under the influence, but also to those who were prev io us ly charged with that offense and entered into a plea agreement for the lesse r
o ffense of reckless driving. Eckhardt , 127 Ill. 2d at 15 2-53. W e therefore concluded

that sec tion 5–6–1( d) is rati onally related to the st at e’ s g oa l o f p ro mo ti ng hi gh wa y sa fe ty. In Eckhardt , the construction of section 5–6–1(d) was not raised

as an issue. Thus, this c ou rt did not engage in a construction of the plain langua ge of that statute . Ins tead, we simply made sta tements about the broad focus of section 5 –6– 1(d) in the context of determining whether it wa s rati onally related to the sta te’s goal of pr om ot in g h ig hw ay s af

et y. A legislative clas sificat ion will be sustained against an equal protect ion challenge if any collection of facts can be reasonab l y conceived

to uphold the classification. Eckhard t , 127 Ill. 2d at 152, citing Village of Oak

Lawn v. Ros ewell , 113 Ill. 2d 104, 111 (1986). Therefore, the anal ysis in E ckhardt was not int ended to b e an allencompassingco n struction of section 5–6–1(d)(3). The analy sis of section5–6–1(d)(3) in Eckhardt wa s s im pl y a broad statement of the focus of that se ction i n the cont ext of reso lving wh ether th e statute
was rationa

lly related to promoting highway safety. We conc lude that Eckhardt does not control our co n struction of section 5–6–1(d)(3) because the issue wa s never

presented and, accordingly , was never addressed in that case. This court’s decision in Kuhn is also inapposite. As in Eckhardt , the issue in Kuhn was whether section 5–6–1(d)(3) of the Code (Ill

. Rev. Stat. 1987, ch. 38, pa r. 1005–6 –1(d)(3 )) is unc onst i tutional on equal protection grounds. Kuhn , 126 Ill. 2d at 204. After reviewi ng the record, this cou

rt determined it was unnecessary to address that

co nstituti onal issue. We first noted that the parties agreed section 5– 6–1( d)(3) applied only when a defendant previously

entered a guilty plea to reckle ss driving

under a p lea ag

reemen t. Kuhn , 126 I ll.-8- 2d at 206. The parties also agreed that the r ecord d id not show the defendant’s prior g

uilty plea to reckless driving was pursuant to a plea agree ment. Kuhn , 126 Ill. 2d at 206. Thus, the

re was no indicat

ion in the record that section 5–6–1(d)(3) preclude d the de fen dant from receiving cour t sup ervision for his subsequent DUI cha rge. Kuhn , 126 Ill. 2d at 206. The tria

l c ourt’s order declaring section 5–6–1(d) (3) unconstitutional was vacated, and t he matter was remanded for further proceedings. Kuhn , 126 Ill. 2d at 207. In Kuhn , this court did not address the i nterpr etation of section 5–6–1(d)(3). We simply held, in accorda nce wit h the par

ties’ agree ment, that the record did not indicate the defendant’s prior plea of guilty was purs uant to a plea agreement. The de cision in Kuhn was based on the failure to show any plea agreement existed

in that case. Inthe absence of a plea ag reement, there was no showing that section 5–6–1(d)(3) precluded a sentence of court super vision. Kuhn does not provide any g

uidance on the construction of section 5–6–1(d)(3). Insum, we c onclude t hat th e plain language of sec tion 5–6–1(d)(3) precludes a sentence of court super vision for driving under the inf luence of alcohol if the defendant has pre viously pled guilty to reckl ess drivin

g under a plea a greement. The

phrase “ plea agree ment” is not limited or conditioned in any way

. Ac co rd in gl y, there is no requirement for the plea ag reement to reduce a charg e of drivi ng unde r the i nflue nce of a lcoho l to re ckles s driv ing. Here, Kissack was p re viously charg ed in 2001 with DUI and reckle ss driving. The docket sheet submitted by the State shows that the case wa s called

for jury trial. Kis sack ple d guilty to reck less driving prior to tr

ial. The d

ocket she et also shows that the State moved to nol-pros the DUI charge “pursuant to agreement.” Kissack received consideration i n exchang e for his guilty plea to r eckless driving based on the State’s ag re ement to dismiss the DUI charg e. The reco rd, the refore, clearly establishes that Kissack’s guilty plea

was the result of a plea

agreement. Accordingly, section 5–6–1(d)(3) precludes a sentence of c ourt s uperv isio n for K issac k’s cu rrent charge of drivin g under the influe

nce of a lcohol in these cir

cumstanc es. Fi na ll y, the petitio ner argues that section 5–6–1(d) does not violate equal protection provisions or create an u nconstitutional mandatory

presumption. The p etitioner makes tho se arg

uments in response to the order deny

ing the State’s motion to reconsider the-9- sentence. Kissack does not respond. We conclude that t hese constituti onal arg

uments ar e not prop erly

before this cour t. Inhis order, the respondent never expressly mentione d e qual protection

guarantees. Moreover, he did n ot find tha t the statu

te created an unconstitutional mandatory pre sumption. The respondent simply asse rted that section 5–6–1(d)(3) would create an unconstitutional irrebuttable presumption if it were applied

li te ra ll y. There is certainly no expres s f inding of unconstitutionality in the respondent’s order. Further, the resp o ndent denied the State’s motion to amend the written order

to comply with Supreme Court Rule 18 (2 10 Ill . 2d R. 18). Supreme Court Rule 18 sets forth requirements for tria l courts findi ng a statute un

constituti onal. This

court ma y su mmarily vacate and remand a circuit court judgment decl aring a

statute unconst i tutional if it fails

to comply

with Rule 1 8. 210 I ll. 2d R. 302(c)(2). The resp ondent’s decision to declin e ame nd ing the order inaccordancewith Rule

18 indicates that he did not intend to declare the statute un

constitu t ional. The respondent’s decision was based solely on his interpretation of sec tion 5–6–1(d)(3). Ad di ti on al ly, Kissack does not contend t hat the statute is unconst itu tional. Kissack’s arguments are direc ted at the interpretation

of the statute. In this case, a constitutional issue has not been properly ra

ised either by the r

espon dent dec laring

the statut

e unconstitutional or by

an arg ument of a

party on ap pe al . A cc or di ng ly, the constituti onality

of sectio n 5–6–1(d

)(3) is no t proper

ly b efore t his court, a nd we dec line to ad

dress tha t subject.

III. CONCL

USION For the fore going

reasons , we conc lude that the plain langua ge of section5–6–1(d) (3) pre cludes a sente nce o f court supervision for Kissack’s driving under the influence of alcohol convict ion. The respondent

has no discretion to depart from the mandatory provisions of se ction 5–6–1(d)(3). Accordingly , mandamus relief is granted directingthe resp ondent to v acate t he se ntence of court supervision and impose a sentence in accordance with the Code.

Mandamus awarded.-10- JUS TICE BUR KE, sp ecial ly concurr ing: I ag ree with

the major

ity t hat a sen tence of court sup ervisi on i s
n otauthorize d by

statute un

der the c ircumsta

nces of t his c ase

. Ac co rd in gl y, I agre e that a mandamus order should issue directing Judge Kinzer to v acate

the sentence of court supervision and impose a senten ce in accordance with the law. My reasons for rea

ching th is

co nc lu si on , h ow ev er , d if

fe r f ro m t ho se ex pr es se d b y th e m aj or it y. Section 5–6–1(d)(3) of the Unified Code of Corre ctions pr ovides: “The provisions of paragraph (c) [which au thorize an order of supervision] shal l no t apply to a defe ndant charged with violating Section 11–501 of the Illinois Vehicle Code or

a similar pr

ovision of

a lo cal ordinance when the defendant has previously *** * * * (3) pleaded

guilty to or st ip ulated to

the fac ts supporting a charge or a

finding of guilty

to a violation of Section 11–503 of

the I llinois Ve

hicle Code

[reckles s drivi ng] or a similar provision of a local ordinance or any similar law or ordinance of another state, and the plea or stipulation was the r

esult of a plea ag reemen t.” 730 I LCS 5/5–6–1(d)(3) (West 2006). Th e State con

tends, an d the majo rity

holds, tha

t the “ple a agree ment” referr ed to in pa ragra ph (3) ab ove mean s any plea agreement , regar

dless of i ts terms or basis. Respondent, Kyle Kissac k, however, contends that, pursuant to our dec isio n in People v. Eckhardt , 127 I ll. 2d 146 (1989), section 5–6–1(d)(3) has been interpreted

to mean that a sentence of court supervision is prohibited only if the pre vious plea

of guilt y to reckless drivingwas the result of

a plea agreement whereby

a charge of driving

under the influence was reduced or otherwise di spose d of. On th is point, I

agree with responde nt. InEckhardt

we were asked

to decide whether section 5–6–1(d)(3) violated equal protection guarantees provide d by both the United States Constitution

(U.S. Cons t., amend . XIV ) and th e Ill in ois Constitution (Ill

. Const. 1970, art. I, §2). The defenda nt in Eckhardt contended

that section 5–6–1(d)(3) violated equal protection principles because it treated those who were found g uilty of reck less-11- driving pursuant to a plea agreement diffe rently than those who we

re convicted of the sa me offe nse afte rentering a blind plea or having gone to trial, with res pect to their eligibility for supervision on a subsequent

section 11–501 (driving under the i nfluenc e of alc ohol) charge. Addressingthis claim, we first not ed tha t the equal protection guara ntee does not prevent different classes of people f rom being treated differe ntly , as long as there is a reasonable ba sis for distinguishi ng the class to w hich the l aw applie s from the class to whichthe statute is inapplicable. Eckhardt , 127 Ill. 2d at 151; People

v. Coleman , 111 Ill. 2d 87, 95 (1986). Thus, we s aid, a legislative classification

will be upheld against an equal pr otection challen ge if any set of fact s ca n reasonably be conceived which will sustain the classificat i on. Eckhardt , 127 I ll. 2d at 15 1. We furt her note d that, where a suspect classification or a fundamental right is not involved, the legisla

tion need only be ratio nally

related to a leg itimate sta

te interest to survive an equal protection challenge. Eckhardt , 127 Ill. 2d at 151. Applying these standards, we initially he ld t h at there was a rat io nal basis for differentiating between pe rsons who have plea bargained to reckless drivingand

those who have entered a blind plea to reckle ss driving . Plea bar gaining typ ically results in a reduction

of the initial charge. Thus, we conclude d that persons who plea bargained were given some consideration for the agreement to plead guilty which pers ons who ente red b lind p leasdid no t rec eive . We further found that section 5–6–1(d) was rationally relat ed t o the state’s legitimate goal of promoting hig hway saf ety. We said:

“ The thrust of this statute is to prevent repeat drunk d rivin g offenders from driving and endanger ing the lives o f motorist s
on Illinois highway

s. This is a legitimate goa l that is well within the State’s police powers.” Eckhardt , 127 Ill. 2d at 151-52. We then went on to state: “The next focus of inquiry is whet her th e denial of supervisionto those who, pursuant to a plea agree ment, have pled guil ty to, or stipulated to facts supporting a charge or a finding of guilt

y of , a vio l ation of s ection 11 –503 (re ckless-12- d rivin g) within the last five years is rationally related to t h e goal of highway

safe ty. Reckless

driving is a Class B misdemeanor. (Ill. Rev. Stat. 1985, ch. 951⁄2, par. 11–503(b).) Drivin g under the influence is a Class A misdemeanor for a first offense in addition

to administ

rative p enalties

. (Ill. Rev. Stat. 1985, ch. 951⁄2, par. 11–501(c).) The obvious focus of the prohibition of s u

pervision found in section 5–6–1(d) of the Unified Code o f Corrections is to preclude supervision not only to those wh o had pr eviously been convicted of driving under the influe nce, but a lso to those

who had been charged with that offens e and plea bargained for the lesser offense of reckle ss driving. A person who has pl ea bargai ned to a charge of reckle ss driving

is thus in a diffe rent posi tion from a

person who has entered

a blind ple a to a rec

kless drivi ng c harg e. We find that sec tion 5–6–1( d) is rati onally related to the St ate’s legitima te goal of pro moting highway safety. I n view of our analy sis of th e purp ose of the statute, we find no equal protection

violation.” (Emphasis add ed.) Ec khardt , 127 Ill. 2d at 152-53. Inresponding to the equal protection challeng e i n Eck hardt , we construed section5 –6–1(d) i

n a way which wou

ld prese rve its

con st it ut io na li ty. Doing so , we held that the st

atute wa s rationa

lly related to a legitimate state interest when applied t o “those who had been charged with [driving under the influence ] and ple a bargained for the lesser offense of reckless driving .” The major ity e rrs when it finds that, in Eckhardt , “we simp ly ma de state ments about the broad focus of s ection 5–

6–1(d) in the conte

xt of deter

mining whether it

was rationally rela

ted to the state’s goal of promotin g highway safety.” Slip op. at 7. The majo rity h olds that the Eckhardt court “conclusively

resolved the defendant’s equal protection claim by finding that the groups at issue were not similarly situated.” Slip op. at 6. The majo rity then states that the Eckhardt

court “never

thele ss went on to find that section5–6–1(d) was rationally rela ted to the state’s legitimate goal of promoting

highwa y sa fety ,” rele gating

th e Eckhardt cour

t’s finding of a rational basis for

the legislation to mere dicta which need not be followed. Slip op. at 6-7. I cannot ag ree.-13- Iagree that a person who plea ba rgains to reckl ess drivin

g is differen tly sit uated tha

n a person who ente

rs a blind

plea or i s prosecuted

a n d convict

ed of re ckless dr

iving. B ut, as Eckhardt recognized, the reason w

hy i tis appropriate to treat a person who plea bargains more harshly ( den y ing them supervision) is because of the presumption that the person who plea bargains to rec kl ess driving was, in fact, charged with DUI , could have been found guilty on that charge, but was a

ble to obtain a reduction of that cha rge. T he opposit

e is true fo ra person

who ente

rs a blind plea or goes to tria

l and is convicted of reck less driving. In these ca se, the presumption is that the person was either n ot charged with DUI or that there was in suf fic ien t ev id enc e to sup por t a c onv ict io n fo r DU I. The rational basis determination i n Eckhardt was not sim

ply empty musings or meanin

gless dicta . It was essential to its finding of

co ns ti tu ti on al it y. Pursuant to Eckhard , the constitut ional ity of section 5–6–1(d)(3) is sustaina

ble only if the re sp ondent’s previous plea to reckle ss drivi ng w as partof a plea agreement c alculated to avoid a convi ction for DUI. By ove rruli ng Eckhardt ’s finding of a rationa l basis, the majority is calling int o qu estion whether the statute survives equal protection scruti

ny. I ndeed, the majority’ s interpretation re nder s the statut e potenti ally

unconstit utional. To the extent that the circuit court interpreted the stat ut e as requiringthe respondent’s prior plea to reckl ess drivin

g to be part of

a plea agreement

to reduce or

dismiss a pr

ior char ge of D UI, I would aff irm th e court’ s judgme

nt. I b elieve, however , that the circuit court’s app lication of the statute, as interpreted, to the facts of the

caseat bar, was incorrect. The record shows that the State produced evidence which showed that respon dent was cha rged in 2002 with DUI and reckless dri ving. At that time , respond ent pled g

uilty to reckle ss driving and t he DUI charg e was dism

issed “pu rsuant to agreement.”

Althoug h th e sentencing statement for this earlier plea does not explicit

ly provide th at the ple a to reckle ss drivin g was in exch ange for the State’s a greement to dismi ss the DUI charg e, that is

a reasonable interpretation o f the court’s 2002 sente ncing o rder. Th

us, section5–6–1(d)(3), e ven when interpreted as stated above, applies inthis instance. Accord

ingly , I joi n in the majority’s decision to g rant the State’s petition for a writ of mandamus

.-14- JUSTICE FREEMAN joins in this special concurrence.